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Tuesday, November 15, 2011

New Paper Posted: Post-Racialism and the End of Strict Scrutiny

I've just put a new paper up on SSRN, "Post-Racialism and the End of Strict Scrutiny". The paper is, obviously, still a draft, but of course I'd love to hear your comments if you have time to read it. The abstract is below:

In recent years, a growing social consensus has emerged around the aspiration of a “post-racial” America: one where race is no longer a fault line for social strife or, perhaps, a morally significant trait whatsoever. This ambition, however, lies in tension with the most basic constitutional principle governing our treatment of race in the public sphere: that of “strict scrutiny.” Post-racialism seeks to diminish the salience of race to near-negligibility. The strict scrutiny of racial classifications, by contrast, significantly enhances the salience of race by treating it differently from virtually every other personal attribute or characteristic—including hair or eye color—extant in our society.

This article examines both the emergence of post-racialism and the development of the strict scrutiny doctrine in an attempt to resolve the underlying conflict. It concludes that the motivator behind both post-racialism and strict scrutiny is to remove the fear that race carries with it as a concept—fear that it any time race appears in our society it necessarily is the harbinger of ethnic strife or the resurrection of Jim Crow. The model for race should follow that of religion or indigenous status. In both cases, the identity axis has been the subject of severe conflict and oppression. Yet the effort to get “beyond” religion or indigeneity does not focus on, or even countenance, permanent suppression of these identities. Rather it seeks to remove the fear that when we do use these elements of our identity, we are necessarily inviting catastrophe.

1 comment:

I'll no doubt have more detailed comments later, but on a quick glance, I thought you might find it worthwhile to contrast Justice O'Connor's "We won't need this in 25 years" with her Indian judicial counterparts at a conference several years ago, who said they saw no end in sight for the need for caste-based affirmative action (which is a much blunter tool than U.S. AA -- there are labeled "reserved seats" in academic institutions for people in scheduled castes).

While I don't want to overdraw the parallels between race and caste, especially given the latter's reliance on a specific religious ideology, it's probably the most race-similar categorization and one that's potentially more challenging to multiculturalism than religion or even aboriginal status. Should people maintain caste-based cultures, given how much they are based around exclusion rather than inclusion? Isn't it toxic for someone to declare "Brahmin Pride" in caste?

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